B. R. ARORA, J. - (1.) PETITIONER Bhanwar Lalwas committed by the learned Munsif and Judicial Magistrate Anoopgarh, to the Court of the Additional Sessions Judge, Raisinghnagar, to stand trial for the offence under Sec. 302 I. P. C. for committing the murder of Reslima by putting insecticide forcibly in her mouth. At the initial stage, the case was registered under Section 174 Cr. P. C. and after investigation, it was found that she died on account of asphyxia. Later on, on September 26,1986, Madu Ram-the father of the deceased, made amendment in his earlier report of September 16, 1986, that Doongar Ram has informed him that in the night, at about 11. 00 p. m. , when he got up to make water, he saw accused Bhanwariya standing near the cot of Reshma and was molesting her. As they were seen by Doongar Ram and therefore she committed suicide by taking insecticides. On the basis of this Bmended report, a case under Section 306 I. P. C. was registered against accused hanwar Lal. The police, after necessary investigation, presented the challan under Section 302 I. P. C. against the accused. The learned Additional Sessions Judge tried the accused, petitioner Bhanwar Lal for the offence under Section 302 I. P. C. The prosecution, in support of its case, examined ten witnesses. The accused was, also, examined under Section 313 Cr. P. C. but he did not produce any evidence in defence. Arguments were heard and the case was fixed for pronouncement of judgment. On the date fixed for pronouncement of judgment, the learned Additional Sessions Judge did not pronounce the judgment but ordered for the amendment in the charge under Section 302 I. P. C. and for addition of the charge under Sec. 376 I. P. C. against the accused. It is against this order dated January 15, 1991, ordering for the addition of charge under Section 376 I. P. C. and modification of charge under Section 302 I. P. C, that the present miscellaneous petition has been filed by the petitioner.
(2.) SECTION 216 Cr. P. C. provides that any Court may alter or add any charge at any time before the pronouncement of the judgment. The power of altering or adding the charge, though vests in the trial Court and the trial Court can exercise this power at any time before the pronouncement of the judgnent provided there is some material before the Court either in the F. I. R. or in the challan to justify this action, but when there is no material before the trial Court to add any charge then the charge cannot be added. The intention of the leg'slature in enacting SECTION 216 Cr P. C. is that the Court can make addition of any charge framed by it at any stage of trial if it is supported by the evidence produced by the prosecution. The requirement of law is that all the efforts should be made to frame a charge in the beginning of the trial itself. Merely because the power under SECTION 216 Cr. P. C. is there with the Court to add the charge, the charge at the commencement of the trial should not be left incomplete. The addition of the charge under Section 3761. P. C. was ordered by the learned Additional Sessions Judge on the grounds that (i) the vagina of the deceased Reshma admitted two fingers and, therefore, it was possible that the deceased might be accustomed to the sexual intercourse; (ii) as there was no evidence on record that Reshma was a married girl and, therefore, from the evidence of Rajendra Kumar, it is proved that rape was committed with her (iii) deceased Reshma was less than 16 years of age and as such she could not be a consenting party to the sexual intercourse, (iv) the accused took her (Reshma) inside the room, that is, also, a circumstance which can be read against the accused for framing the charge under Section 376 I. P. C. and (v) Smt. Ram Pyari has stated that when the deadbody was being given the last-batb then she found blood on the vagina of the deceased Reshma. Merely because the vagina of the deceased Reshma admitted two fingers or there were some blood-stains on the vagina, charge under Section 376 I. P. C. cannot be framed against the accused unless there are some attending circumstances raising a suspicion regarding the involvement of the accused. Medical aspect of the case and the possibility of some changes in the body after the death, have also, to betaken note of. Reshma died on 16. 9. 86, and when the post mortem examination was conducted on the same day by Dr. Angad Deo, no signs of sexual intercourse were noticed by PW 5 Dr. Angad Deo during that post-mortem examination. The second post-mortem examination on the dead-body of Reshma was conducted by the Medical Board on September 18, 1986 and one of the members of this Medical Board was Dr. Rajendra Kumar Gupta. The deadbody of Reshma was examined at that time. It was observed in the post-mortem report that there is no evidence of fracture of hyoid bone, ribs or lay-bones etc. It was, also, observed in this report that all the cavities are open and vagina admits two fingers easily and the body is highly decomposed. On the basis of this post-mortem report that the vagina admitted two fingers, the learned Additional Sessions Judge has directed to frame charge under Section 376 I. P. C. against the accused. The learned Additional Sessions Judge has not taken care to look-into the medical science in this connection. According to Modi's Medical Jurisprudence and Toxicology, after death, the skin of the whole body due to draining of the blood from the small bloodvessels of the skin assumes a pale and a shy-white appearance especially in fair bodies, and loses its elasticity. It has been further stated by Modi that with the disappearance of rigor-mortis, the muscles become soft and flaccid-but do not respond to a mechanical or electrical stimulus as in the first stage of relaxation. As the body, after the death loses its elasticity and muscles become soft and flaccid then in that circumstance, the admission of two fingers in the vagina cannot be taken as a prima facie proof of committal of the sexual intercourse with the deceased. There is no evidence on record which could prima facie raise a suspicion against the accused for committal of the rape with the deceased. At the time of framing the charges, the inquiry of the Court is limited and the Court has to decide whether the facts, emerging from the record and the documents, constitute the offence with which he is charged. The Court is expected to sift the evidence at this stage only for a limited purpose and not to martial the evidence for separating the grain from the chaff, which the Court is required to do at the time of conclusion of the trial. At this stage, the Court is required to evaluate the materials and documents on record with a view to find out if the facts, emerging therefrom, taken at their face value disclose the evidence of all the ingredients constituting the offence. Though the inquiry for framing the charge is very limited, but if we see the present case then the facts emerging from the materials and documents on record, do not disclose the existence of the ingredient of the offence under Section 376 I. P. C. When the facts and documents do not disclose any of the ingredients of the offence under Sec. 376 I. P. C. then, in my view, the learned Additional Sessions Judge was in error in adding the charge under s. 376 I. P. C. against the accused. The learned Additional Sessions Judge was, also wrong in modifying the charge under S. 302 I. P. C. at this stage. The reasons set-out by the learned Additional Sessions Judge do not conform to logic. The learned Additional Sessions Judge, in making addition of the charge and making modification in the charge under Section 302 I. P. C. did not observe the safeguards mentioned in Section 216 Cr. P. C. The order passed by the learned Additional Sessions Judge adding the charge under Sec 376 I. P. C. and modifying the charge under Sec. 302 I. P. C, deserves to be quashed and set-aside. In the result, the miscellaneous petition, filed by the petitioner, is allowed. The order dated January 15, 1991, passed by the learned Additional Sessions Judge, Raisinghnagar, is set-aside and the learned Additional Sessions Judge is directed to hear the arguments and proceed with the case in accordance with law. The office is directed to return the record immediately to the learned Additional Sessions Judge, Raisinghnagar, and the accused-petitioner is directed to appear before the learned trial Court on August 17, 1992. .;